19th PENAL CHAMBER | Basis No: 2015/8950 | Decision No: 2015/7785 “LEGAL PRECEDENT” Notification No: KYB – 2015/201009
SUMMARY: Regarding the acquittal of the defendant O.E. for the crime of non-payment of alimony, the objection filed by the complainant’s counsel was accepted by the Kayseri 3rd Enforcement Penal Court, sentencing the defendant to enforcement imprisonment (tazyik hapsi) for up to 3 months pursuant to Article 344 of the Execution and Bankruptcy Law (EBL) No. 2004. The Ministry of Justice requested a reversal for the benefit of the law (kanun yararına bozma) against this decision.
THE NOTIFICATION CLAIMS: Although the Kayseri 3rd Enforcement Penal Court sentenced the defendant to enforcement imprisonment for the non-payment of the October alimony debt; it is observed that the complaint date was 04/11/2014, and the defendant performed (paid) the alimony debt for the period subject to the complaint on 31/10/2014, before the conviction became final. Therefore, pursuant to Article 354/1 of the EBL, which states, “If the complainant waives the complaint or if it is proven that the debt has been extinguished (itfa), the case and the penalty along with all its consequences shall be dropped,” it was argued that the penalty against the defendant should have been dropped.
LEGAL ANALYSIS AND JUDGMENT: As stated in the decision of the 16th Civil Chamber of the Court of Cassation dated 07/12/2011; for a decision to be rendered to drop the case and the penalty along with all its consequences due to the extinction of the debt (borcun itfası) pursuant to Article 354 of the EBL No. 2004, the debt must be paid in full, including execution costs and accrued interest.
In the concrete case, although the defendant paid the alimony debt for the period subject to the complaint via bank transfer on 31/10/2014, he did not pay the execution costs and interest. Therefore, it is understood that a decision to drop the penalty cannot be rendered. Consequently, the request of the Chief Public Prosecutor’s Office of the Court of Cassation for a reversal for the benefit of the law, which was found unjustified, is REJECTED. It was unanimously decided on 25/ 11/2015.